Court of Appeal Decision of the Week

Criminal Law: Restricted Use of General Warrants; How Should They Be Used?

Case: R. v. Christiansen, 2017 ONCA 941 (CanLII)

Keywords: General Warrant; s. 487.01 of the Criminal Code; Drug Trafficking

Synopsis:

Police suspect the Appellant, Mr. Christiansen, is engaged in drug trafficking. Surveillance of Mr. Christiansen entering and leaving a clothing store called “Limited Edition” leads police to further suspect the store is being used as a “stash” house. The police seek and obtain a general warrant pursuant to s. 487.01 of the Code.

Notwithstanding s. 487.01(1)(c) of the Code, the police Information to Obtain (“ITO”) discloses the general warrant is sought “…to support the issuance of a Controlled Drugs and Substances Act (CDSA) Warrant to search.” Nevertheless, the warrant is issued and police later confirm the presence of narcotics at the store. Relying on these observations, the police then secure the appropriate CDSA warrant and obtain the evidence which leads directly to Mr. Christiansen’s convictions (for possessing narcotics for the purpose of trafficking and possessing proceeds of crime).

On appeal, Mr. Christiansen argues the Trial Judge erred in upholding the general warrant. The Court of Appeal allows the appeal, sets aside the convictions, and orders a new trial.

Importance:

For the Court of Appeal, general warrants under s. 487.01 are to be used “sparingly” as they authorize the use of investigative techniques, procedures or devices, or other things to be done, that would otherwise constitute unreasonable searches. (See para. 10).

While the powers set out in s. 487.01 of the Criminal Code are very broad, the section also contains some important limiting language:

487.01(1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

Citing R. v. TELUS Communications Co., 2013 SCC 16 (CanLII), the Court of Appeal confirmed that, in particular, s. 487.01(c) is meant to restrict the use of general warrants in circumstances where alternative investigative techniques are available.

In Telus, Moldaver J. explained at para. 80 that the general warrant should only be used in circumstances where the “investigative technique is truly different in substance from an investigative technique accounted for by another legislative provision” and, further, that 487.01(c) serves to ensure that “general warrants may not be used as a means to circumvent other authorization provisions that are available but contain more onerous pre-conditions.” (See para. 10).

For the Court of Appeal, the ITO in this case did not provide a reasonable basis for the issuing judge to conclude s. 487.01(c) was satisfied. The general warrant was issued, in substance, to search the “Limited Edition” store – in other words, for the same investigative technique which was otherwise available under s. 11 of the CDSA (less the more demanding or “onerous” requirements of that section). As such, the Court of Appeal determined the police had used or attempted to use the general warrant for the “impermissible purpose” of circumventing the standard requirements to obtain the s. 11 warrant. (See para. 11).

For this reason, the Court of Appeal concluded that the Trial Judge had erred in not quashing the general warrant. Mr. Christiansen’s convictions were set aside; the Crown “appropriately conceded” that, if the general warrant is found to be invalid (and if the evidence obtained as a result of that warrant were excluded) the convictions against Mr. Christiansen could not stand. (See para. 13).

Counsel for the Appellant: Joseph Wilkinson (Brauti Thorning Zibarras LLP, Toronto)

Counsel for the Respondent: James Sutton and Chrisa Reccord (Public Prosecution Service of Canada, Ottawa)

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Posted: Wednesday, December 06, 2017